125 Misc. 2d 968 | N.Y. Sup. Ct. | 1984
OPINION OF THE COURT
The court shall grant judgment to the plaintiff declaring Executive Order No. 43, entitled, “Establishing a State Program for Voter Registration”, unlawful, unconstitutional and void, and enjoining defendants from implementing the executive order.
On July 9,1984, the Governor issued the aforesaid order and this declaratory judgment action soon followed. Plaintiff simultaneously sought a preliminary injunction to restrain implementation of the program pending a determination on the merits. This request was granted by Special Term (Clark v Cuomo, 123 Misc 2d 885), but was ultimately denied on appeal upon the rationale that plaintiff had not established irreparable injury. However, in so
At the outset, it is important to recognize that there are many things which this case is not. It is not a question of Democrats versus Republicans nor an issue of laudable intent. Rather, at issue here is the bedrock of constitutional law; the separation of powers between respective branches of government. “The fundamental constitutional principle of the separation of powers among the three departments of government is included by implication in the pattern of government adopted by the State of New York * * * it being a basic part of the organic law that each department should be free from interference, in the discharge of its own functions and peculiar duties, by either of the others” (Matter of Gottlieb v Duryea, 38 AD2d 634,635).
Upon the testimony and the exhibits introduced, certain facts have become evident. The challenged order seeks to create a State-wide program for voter registration and enrollment in political parties. It mandates that designated State agencies provide mail registration and enrollment forms with employees trained to assist potential registrants and enrollees in completing the forms. A Voter Registration Task Force is created whereby the Governor selects certain individuals to develop training programs for State employees assigned to implement the program and assist registrants and enrollees. The testimony established that there are plans to set up hundreds of satellite registration and enrollment locations throughout the State, where persons will be able to register and enroll in a political party with the assistance of designated State employees under the direct supervision, control and auspices of the Governor and various State agencies designated by him.
Defendant urges that he has simply made the facilities of State offices regularly visited by the public available to assist in implementing the laudable public policy of increased voter registration. This assertion is not supported by the evidence adduced at trial. The exhibits introduced
Evidence adduced at trial establishes that “assistance” will be encouraged and offered to potential registrants and party enrollees. According to the mandates of the executive order, State agencies are directed to provide staff to assist in the filling out of the forms. The Deputy Commissioner of the Department of Taxation and Finance immediately recognized the problem when he stated: “We ought to give careful consideration to the propriety of having a taxpayer seek technical assistance with his registration form from the same employee who is answering questions about his tax form. This would combine two very sensitive areas and may convey the impression that we are linking personal financial and tax information with electoral and perhaps, political activity.” The Legislature has, in fact, enacted section 5-216 of the Election Law, which authorizes assistance to an applicant in limited instances when a person is unable to read or write due to disability or illiteracy. Further, only in such instances may an applicant receive assistance in order to enroll in a political party. As envisioned by the Governor, this legislative mandate of neutrality will be abrogated in its entirety. Thus, upon the proof at trial, it is clear that Executive Order No. 43 is not
That private citizens or partisan organizations may actively engage in the distribution of registration application forms without regard to partisanship is beyond question, but not the issue before this court. While private citizens may wage a campaign to enroll voters sympathetic to their particular point of view, the function of government is to remain neutral. It thereby ensures fairness, and in so doing, avoids even the appearance of partisanship. The Constitution contains a mosaic of principles which collectively seek to preserve this basic tenet of the electoral process, and places the authority to implement its mandate squarely within the legislative branch of government. Any attempt at usurption or circumvention of this grant of authority must be closely reviewed, lest it be eroded imperceptibly by an unfettered, however well-intentioned executive. Justice Jackson, in resolving a similar question on the national level, instructed us that “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb * * * courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” (Youngstown Co. v Sawyer, supra, pp 637-638.)
It has long been recognized that the Legislature has been constitutionally delegated direct and clear authority in the realm of political affiliations, elections and voting. “In the construct of any political philosophy under our polity, to the extent that government is involved in elective processes, the role of the legislative branch must be recognized as paramount.” (Matter of Higby v Mahoney, 48 NY2d 15, 21; emphasis supplied.) It is equally clear that “[h]owever laudable its goals, the executive branch may not override enactments which have emerged from the lawmaking process.” (Matter of County of Oneida v Berle, 49 NY2d 515, 523.) Reserving this principle as our pole star, nevertheless, it is equally apparent that “there are areas in which
The issue is not whether the challenged order conflicts with legislative policy, for even if it is in perfect harmony, it is for the legislative branch, not the executive, to determine the particulars of accomplishing the stated goal of increasing voter registration or enrollment in a political party. There is no implicit constitutional authority which suggests that this is an area for the sharing of authority between the executive and legislative branches. Nor has the Legislature left a vacuum in this area. It has explicitly and in detailed fashion legislated the enrollment and registration aspect of the elective process. In that regard, it has chosen to delegate the responsibility for the dissemination of voter registration applications to local county boards of elections (Election Law, § 5-210, subd 2). It could have assigned this responsibility to the Department of Motor Vehicles, but has chosen not to. It could require the Department of Taxation and Finance to mail a registration application with every tax refund. It has declined to do so. It could have mandated that social services’ checks include a voter registration application. It has enacted no such requirement.
Defendant’s rationale would legitimize an executive agency for the registering and enrolling of voters, merely
During the 1983-1984 session, the Legislature had before it a bill introduced by Assemblyman Norman which would have amended the Election Law to include a plan for the distribution of registration forms which was almost identical to the plan contained in Executive Order No. 43. The Legislature chose not to pass the bill. The